Keller v. Berryhill ( 2019 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LORI KELLER, Plaintiff, Case No. 18-10049 Honorable Laurie J. Michelson v. Magistrate Judge Elizabeth A. Stafford Commissioner of Social Security, Defendant. ORDER ADOPTING REPORT AND RECOMMENDATION [23] GRANTING PETITIONER’S APPLICATION FOR FEES [21] Before the Court is Magistrate Judge Elizabeth A. Stafford’s July 31, 2019 Report and Recommendation. (ECF No. 23.) At the conclusion, Magistrate Judge Stafford notified the parties that they were required to file any objections within fourteen days of service, as provided in Federal Rule of Civil Procedure 72(b)(2) and Eastern District of Michigan Local Rule 72.1(d), and that “[f]ailure to file specific objections constitutes a waiver of any further right of appeal.” (ECF No. 23, PageID.369–370.) It is now August 16, 2019. As such, the extended time to file objections has expired. No objections have been filed. The Court finds that the parties’ failure to object is a procedural default, waiving review of the Magistrate Judge’s findings by this Court. In United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981), the Sixth Circuit established a rule of procedural default, holding that “a party shall file objections with the district court or else waive right to appeal.” And in Thomas v. Arn, 474 U.S. 140, 144 (1985), the Supreme Court explained that the Sixth Circuit’s waiver-of- appellate-review rule rested on the assumption “that the failure to object may constitute a procedural default waiving review even at the district court level.” 474 U.S. at 149; see also Garrison v. Equifax Info. Servs., LLC, No. 10-13990, 2012 WL 1278044, at *8 (E.D. Mich. Apr. 16, 2012) (“The Court is not obligated to review the portions of the report to which no objection was made.” (citing Thomas, 474 U.S. at 149–52)). The Court further held that this rule violates neither the Federal Magistrates Act nor the Federal Constitution. The Court therefore finds that the parties have waived further review of the Magistrate Judge’s Report and accepts her recommended disposition. It follows that Keller’s application for fees (ECF No. 21) is GRANTED. SO ORDERED. s/Laurie J. Michelson LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE Date: August 16, 2019 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing document was served on the attorneys and/or parties of record by electronic means or U.S. Mail on August 16, 2019. s/William Barkholz Case Manager to Honorable Laurie J. Michelson